Case of the Day – Monday, September 12, 2022


We saw last week that they’re some pretty tough nuts out in Washington. Ironically known as “The Evergreen State,” Washington law holds that if I hack off the roots or branches of your tree up to my property line, even if it ensures that your tree will end up in a “never-green state” (which is to say, dead, dead, dead), that’s just fine.

Today, we’re looking at the other side of the country and, for that matter, the other side of the coin. New York State takes a much more liberal view of things. Every homeowner still has the first prong of the Massachusetts Rule at his or her fingertips (or the tip of the chainsaw). That is, a landowner may trim branches or roots up to the property line.

However, there is a caveat. New York has codified some of its common law. That is, it has tried to distill some of the court-made law from years and years of jurisprudence into its statutes. One such code relates to real estate law, and is called New York Real Property Actions and Proceedings Law.

Called the RPAPL, an unpronounceable acronym if ever there was one, that code contains § 861, which makes a landowner liable for “despoiling” a neighbor’s tree without the neighbor’s permission. In today’s case, the court let the Fliegmans go forward with their complaint that construction contractors hired by their neighbors, the Rubins – while not setting foot on their land – nevertheless caused three Fliegman trees to topple by cutting roots that had grown into the Rubins’ property. The Rubins had the right to cut encroaching roots, the court held, but not so as to harm the tree’s support structure.

Fliegman v. Rubin, 781 N.Y.S.2d 624 (S.Ct. 2nd Dist., Nov. 20, 2003). After three large trees located on Agi and Mendel Fliegmans’ property fell, damaging their home, they sued their next-door neighbors Liebel and Dorothy Rubin, as well as their contractors. The Fliegmans argued that the trees fell because of an excavation on the Rubins’ property as part of a house construction project.

They sued, claiming negligence, trespass and violation of New York Real Property Actions and Proceedings Law § 861, Action for cutting, removing, injuring or destroying trees or timber, and damaging lands thereon.

The trial court threw out the Fliegmans’ suit, and they promptly appealed.

Held: The Fliegmans could recover damages.

The fallen trees at issue were located on the Fliegmans’ property, but their roots and branches encroached onto the Rubins’ property. At common law, adjoining property owners – such as the Rubins – are permitted to trim tree branches and roots which encroach onto their property from a neighboring lot. However, the appellate court said, the right to self-help is limited, in that an adjoining landowner’s right to engage in self-help “does not extend to the destruction or injury to the main support system of the tree.”

New York RPAPL 861(1) provides that “if any person cuts down or carries off any wood, underwood, tree… or otherwise despoils a tree on the land of another, without the owner’s leave… an action may be maintained against him by the owner…” This is in accordance with common law principles, the Court held.

RPAPL 861 does not require that a trespass occur in order to impose liability. Instead, damages may be recovered under the common law and pursuant to RPAPL 861 if a tree is, among other things, “cut down or despoiled even if the defendants herein did not enter onto the plaintiffs’ property.”

– Tom Root

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